Topic: Washington Update

Washington Update

Revising the Definition of “Waters of the United States”

In December 2022, the U.S. Environmental Protection Agency (EPA) and the U.S. Army announced a new rule revising the definition of “waters of the United States.”[1] The final rule was published in the federal register on December 30, 2022 and became effective on March 20, 2023.[2] EPA and the Army (the Agencies) used legislative authority granted under the Clean Water Act to update the definition of “waters of the United States” and seek to reestablish water protections that existed prior to 2015.[3]

The Navigable Waters Protection Rule

Between 2015 and 2020, the definition of “waters of the United States” was revised three times.[4] The third revision resulted in the 2020 Navigable Waters Protection Rule (NWPR), which was the product of an executive order signed on February 28, 2017, under the Trump administration.[5] The NWPR was a departure from the pre-2015 rule that the Agencies had used for decades to define “waters of the United States.”[6] The NWPR excluded, for the first time, interstate waters, all ephemeral streams, and traditional navigable waters; some territorial seas also fit within the NWPR’s exclusions.[7]

Federal district courts in both Arizona and New Mexico remanded the NWPR at trial and vacated the rule. In the Arizona case, Pascua Yaqui Tribe v. EPA, the court stated that “[t]he seriousness of the Agencies’ errors in enacting the NWPR, the likelihood that the Agencies will alter the NWPR’s definition of ‘waters of the United States,’ and the possibility of serious environmental harm if the NWPR remains in place upon remand, all weigh in favor of remand with vacatur.”[8]

The court in New Mexico agreed, stating that the NWPR had “fundamental, substantive flaws that cannot be cured without revising or replacing the NWPR’s definition of ‘waters of the United States.’”[9] After these and several other federal district courts vacated or remanded the NWPR, EPA ceased to use that rule’s definition and reverted to the pre-2015 definition of “waters of the United States.”[10] These court decisions and EPA’s response triggered the new rulemaking.

On January 20, 2021, President Biden signed Executive Order 13990.[11] Some of the stated goals of the executive order were to “listen to the science; to improve public health and protect our environment; [and] to ensure access to clean air and water.”[12] As part of the executive order, all agencies were directed to “immediately review and, as appropriate and consistent with applicable law, take action to address the promulgation of Federal regulations and other actions during the last 4 years that conflict with these important national objectives, and to immediately commence work to confront the climate crisis.”[13] Review of the NWPR resulted in the Agencies’ decision to replace it.[14]

The New Rule

The Agencies’ revisions to the definition of “waters of the United States” are based on the pre-2015 paradigm, commonly referred to as the “1986 regulations,”[15] with the goal of making the new definition match the older rule.

Scope of the New Rule

The new rule brings previously excluded waters back into the category of jurisdictional waters. Under the new rule, the Agencies define “waters of the United States” as:

. . . [(1)] traditional navigable waters, the territorial seas, and interstate waters (“paragraph (a)(1) waters”); . . . [(2)] impoundments of “waters of the United States” (“paragraph (a)(2) impoundments”); . . . [(3)] tributaries to traditional navigable waters, the territorial seas, interstate waters, or paragraph (a)(2) impoundments when the tributaries meet either the relatively permanent standard or the significant nexus standard (“jurisdictional tributaries”); . . . [(4)] wetlands adjacent to paragraph (a)(1) waters; wetlands adjacent to and with a continuous surface connection to relatively permanent paragraph (a)(2) impoundments or jurisdictional tributaries when the jurisdictional tributaries meet the relatively permanent standard; and wetlands adjacent to paragraph (a)(2) impoundments or jurisdictional tributaries when the wetlands meet the significant nexus standard (“jurisdictional adjacent wetlands”); . . . [and (5)] intrastate lakes and ponds, streams, or wetlands not identified in paragraphs (a)(1) through (4) that meet either the relatively permanent standard or the significant nexus standard (“paragraph (a)(5) waters”).[16]

The Agencies stated that they believe this definition fits the objectives of the Clean Water Act, respects the Act’s limits, and aligns the rule with decades of scientific expertise and implementation experience.[17]

Limitations, Exclusions, and Agency Judgment

While the new rule brings certain waters back under Agency jurisdiction, like traditional navigable waters and territorial seas that had fit within one of the NWPR’s exclusions, it also creates exclusions based on the 1986 regulations.[18] These exclusions are largely based on the “relatively permanent” or “significant nexus” standards.[19] Tributaries, adjacent wetlands, lakes and ponds, streams, and wetlands that are not identified in paragraphs (a)(1) through (4) must meet either the relatively permanent standard or the significant nexus standard.[20] Under the rule, waters that do not meet one of these standards are not “waters of the United States.”

The Agencies state that the relatively permanent or significant nexus standards fit the Clean Water Act’s best available science requirement because “the ‘significant nexus’ standard established in [the] rule is based on an assessment of the effects of waters in these categories on the water quality of paragraph (a)(1) waters.”[21] Similarly, the “relatively permanent” standard results in various protections of the integrity of jurisdictional waters.[22]

Additionally, waters that do not fall within established categories may still be covered under the new rule. In the past, waters not within an established category could be covered if they had effects on water quality and on interstate commerce.[23] However, the new rule replaces the “interstate commerce” test with the relatively permanent and significant nexus standards used elsewhere in the rule.[24] Thus, Agencies cannot assert jurisdiction over non-navigable, intrastate waters solely because of the impact their use has on interstate or foreign commerce.[25]

Certain categorized and non-categorized waters may require fact-intensive consideration by the Agencies to determine whether they fall under agency jurisdiction. The Agencies, as always, have authority to include or exclude waters from “waters of the United States” on a case-by-case basis.[26]

Response to and Current Status of the New Rule

While the new rule generally returns to the older definition of “waters of the United States,” its publication quickly faced pushback from numerous states. Twenty-five states formed a coalition to challenge the rule;[27] many are the same states that challenged the 2015 expansion of the rule under the Obama administration.[28] Those lawsuits led to the revisions from 2015 to 2020, ultimately resulting in the Trump administration’s NWPR.[29]

These states seek a preliminary injunction to prevent the rule from taking effect and argue that the new rule is an overreach.[30] However, the NWPR has been vacated or remanded by several federal district courts, and the Agencies are using the pre-2015 definition of “waters of the United States” pending implementation of the new rule.[31] One potential sticking point for the new rule is the Supreme Court’s decision in Sackett v. EPA, which may impact whether the Biden administration decides to propose a second new definition of “waters of the United States” at the end of 2023.[32]

Jacob Arechiga is a Special Counsel in Duane Morris LLP’s Philadelphia, PA office. His practice is focused on complex commercial matters, particularly those in the energy and electric power industries.

Stephen DeVinney is a 3L from New Port Richey, Florida. He graduated from the University of Florida and joined TELJ during his second year of law school. Stephen discovered an interest in the legal issues surrounding water quality and environmental toxics in law school, and he will be working in litigation for the Office of the Texas Attorney General after graduation. 

Washington Update

Environmental Justice Action Plan for Land Protection and Cleanup Programs

Introduction

On September 30, 2022, the U.S. Environmental Protection Agency’s (EPA) Office of Land and Emergency Management (OLEM) finalized the Environmental Justice Action Plan: Building Up Environmental Justice in EPA’s Land Protection and Cleanup Programs (EJ Action Plan).[1] The Plan focuses on advancing environmental justice in OLEM’s programs, including Brownfields, Emergency Response, Superfund, Solid Waste Management and Corrective Action, and Underground Storage Tanks.[2] The OLEM will work with the newly created Office of Environmental Justice and External Civil Rights (OEJECR)[3] to implement the plan.[4]

Background

The EPA defines environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.”[5]   Environmental justice has been a focus in the Biden Administration.[6] Within days of taking office, President Biden issued two executive orders intended to lay the foundation for the administration’s environmental justice goals.[7] Together, these two executive orders—Executive Order 13985 and Executive Order 14008—direct federal agencies to “promote and work toward proactively achieving environmental justice.”[8]

In January 2022, OLEM released a draft of the EJ Action Plan to further effectuate the administration’s goals.  After hosting multiple public engagements sessions and reviewing comments, OLEM finalized the EJ Action Plan in September 2022.

Overview

The EJ Action Plan lays out various projects, as well as tools and practices, to apply to OLEM’s existing programs.[9] For each project, the EJ Action Plan provides a brief description of how the project will operate, the goal(s) of the project, and the potential environmental justice benefits.^[10] Additionally, the plan also provides an approximate timeline, including next steps and expected partners required for implementation of the project.^[11]

The recommended projects are grouped into one of four parts—each part corresponding to a different priority set out by the EPA and the Biden Administration.[12] These priorities and stated goals are outlined below.

Strengthen Compliance

The EPA’s stated goal is “[t]o strengthen compliance with cornerstone environmental statutes in communities overburdened by pollution.”[13] Further, to properly monitor compliance with, and subsequently enforce, environmental statutes, it “is necessary to ensure communities get the environmental and human health benefits intended by environmental statutes and EPA’s regulations.”[14]

Incorporate Environmental Justice Concerns

The EPA’s stated goal is to “[t]ake immediate and affirmative steps to incorporate environmental justice considerations into our work, including assessing impacts to pollution-burdened, underserved and tribal communities in regulatory development and to maximize benefits to communities.”[15]

Improve Community Engagement

EPA’s stated goal is to “[t]ake immediate and affirmative steps to improve early and more frequent engagement with pollution-burdened and underserved communities affected by agency rulemakings, permitting decisions and policies. Following President Biden’s memorandum on strengthening the nation-to-nation relationship with tribal nations, EPA staff should engage in regular, meaningful and robust consultation with tribal officials in the development of federal policies that have tribal implications.”[16]

Implement Justice40

EPA’s stated goal is, “[c]onsistent with the Administration’s Justice40 initiative, [to] consider and prioritize direct and indirect benefits to underserved communities in the development of requests for grant applications and in making grant award decisions, to the extent allowed by law.”[17]  The Justice40 initiative is memorialized in Executive Order 14008,[18] with the aim to ensure that at least “40 percent of the overall benefits of certain Federal investments flow to disadvantaged communities that are marginalized, underserved, and overburdened by pollution.”[19]

What’s Next

Implementation

The OLEM and OEJECR will work together to implement this Plan.[20] Specifically, the OEJCR is tasked with ensuring that any actions under the Plan comply with federal civil rights laws.[21] Funding from the Bipartisan Infrastructure Act will significantly impact the success of the EJ Action Plan.[22] The Act allocated a total of $3.5 billion to Superfund clean-up programs and an additional $1.5 billion for brownfield revitalization.[23] The first $1 billion is expected to be used “to initiate cleanup and clear the backlog of 49 previously unfunded Superfund sites and accelerate cleanup at dozens of other sites.”[24] The EJ Action Plan is further intended to be a “working document,” to be updated to reflect any progress made, as well as any future environmental justice efforts undertaken by OLEM.[25]

Challenges

The EJ Action Plan is dependent on cooperative actions by the EPA, state and local governments, and tribal nations. Further, the federal government is limited in what actions it can take and must rely on state and local governments to effectuate policies, which may also complicate the implementation of the Plan. Legal challenges to environmental justice efforts are also likely—if not inevitable. With these potential challenges in mind, EPA published a document extensively laying out federal statutes and regulations that serves as a basis for many of the actions and tasks contemplated by the EJ Action Plan.^[26]

Jacob Arechiga is a Special Counsel in Duane Morris LLP’s Austin, Texas, office. His practice is focused on complex commercial matters, particularly those in the energy and electric power industries.

Alex Anderson is a J.D. Candidate, Class of 2023, at The University of Texas School of Law. Alex joined TELJ in Fall of 2021 and serves as Senior Editor. He was raised in Tulsa, Oklahoma and studied Government at The University of Texas at Austin. After graduation, he plans to practice bankruptcy and restructuring.

Washington Update

The Most Ambitious Rule Yet?

In December of 2021, the EPA finalized a rule which created “the most ambitious vehicle emissions standards for greenhouse gases ever established,” for light-duty vehicle model years (MY) 23-26.^[1] This rulemaking stemmed from an executive order that President Biden signed on his first day in Office, which pledged, 

“to listen to the science; to improve public health and protect our environment; to ensure access to clean air and water; to limit exposure to dangerous chemicals and pesticides; to hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; to reduce greenhouse gas emissions; to bolster resilience to the impacts of climate change; to restore and expand our national treasures and monuments; and to prioritize both environmental justice and the creation of the well paying union jobs necessary to deliver on these goals.”^[2]

            To deliver on these presidential promises, the Order requires agency heads to review all agency actions that occurred during the Trump Administration and to, “consider suspending, revising, or rescinding,” any action that might be, “inconsistent with, or present obstacles to,” to the above policy in the Order.^[3] In an effort to establish, “ambitious, job-creating fuel standards,” Section 2 of the Order specifically requires agencies to review the Trump Administration’s Safe Affordable Fuel Efficient (SAFE) Vehicles program and gives agencies the ability to re-open the notice and comment process for the SAFE vehicle rule.^[4] The Order further required that agencies suspend, revise, or revoke the SAFE rule by July 2021 and consider the views of labor unions, states, and industry in its decision.^[5]

The rule incorporates a slew of ambitious goals that are designed to incorporate the Biden Administration’s climate change and environmental justice initiatives and target a highly pollutive industry. Light duty vehicles, which include passenger cars and most SUVs, vans, and pickup trucks, account for almost 60% of greenhouse gas (GHG) emissions in the transportation sector and 17% of total US GHG emissions.^[6] The transportation sector is the largest emitter of GHG in the United states and, while work certainly needs to be done to address commercial transportation and to improve access and availability of public transportation, transforming emission standards for light duty vehicles is an important part of lowering emissions and ultimately decarbonizing transportation.^[7] 

The EPA has authority to promulgate this rule under Section 202(a) of the Clean Air Act (CAA) which requires it to, “establish standards for emissions of pollutants from new motor vehicles which, in the Administrator’s judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.” ^[8] The EPA must consider the cost of compliance including, “technological feasibility, compliance cost (…) lead time (…) the impacts of potential GHG standards on the auto industry, cost impacts for consumers, oil conservation, energy security (…) other energy impacts [and] safety.”^[9] While all factors must be considered, the ultimate purpose of adopting regulations under section 202(a) of the CAA is to address harmful air pollution that can potentially endanger public health and welfare.^[10] The agency openly stated that it handled this calculus differently than it did when promulgating the SAFE rule, and explained that it was putting greater weight on emissions reductions (rather than industry considerations) and the resultant public health and welfare benefits in light of the CAA’s clear statutory purpose.^[11] This is just one example of the marked difference between the Trump and Biden administrations different approaches to agency duty, environmental regulation, and public health and welfare.  

            The EPA also cites Supreme Court precedent establishing that agencies can change their opinions regarding existing policy, in what might be an attempt to prevent litigation or to just prove again that it has the authority to carry out the actions at hand.^[12] Agencies are allowed to change their existing policies as long as they give adequate rationales and properly explain the reasons for said changes.^[13] In changing the SAFE regulations the EPA does not even need to provide a more detailed justification; instead, an explanation that would accompany a regulation made from scratch would do.^[14] The EPA goes above and beyond this requirement, clearly explaining why it is turning away from the position it held in promulgating the SAFE regulations. 

The EPA’s amended approach, which returns to the original statutory purpose of the CAA, will reduce emissions by 50% more than the original SAFE standards would.^[15] The new rule also results in an expected decrease of CO2 by almost 50 grams/mile for MY 2026^[16] and helps to avoid over 3 billion metric tons of CO2 as compared to the SAFE rule.^[17] The benefits of the program far outweigh the costs as well; the program under the new rule has a net present value of 120 to 190 billion dollars,^[18] will reduce gasoline consumption by more than 360 billion gallons (15% of annual consumption),^[19] and will result in a total fuel savings of $210 billion and $420 billion through 2050.^[20]

The EPA also incorporated a robust environmental justice approach in the promulgation of the new rule. In creating the new rule the agency sought to identify and address the potential, “disproportionately high and adverse human health or environmental effects…on minority populations and low-income populations in the United States,” that the rule might have in order to achieve the, “fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.^[21] This is in accordance with Biden’s Executive Order 14008 which calls on federal agencies to make achieving environmental justice through the implementation of their programs and actions a priority via a policy, “to secure environmental justice and spur economic opportunity for disadvantaged communities that have been historically marginalized and overburdened by pollution and underinvestment in housing, transportation, water and wastewater infrastructure and health care.”^[22] The EPA explains its incorporation of this mission into the new rule as two-pronged. First, the adverse impacts of climate change will be felt more strongly by people of color and low-income communities, as they are especially vulnerable to these changes. By attempting to reduce GHG emissions and the impacts of climate change, these populations will benefit and potentially avoid some of the more disastrous impacts of global climate change. Second, the EPA also mentioned the reduction of non-GHG emissions from the adoption of the new rule. People of color and low income communities are more likely to live in areas with higher levels of air pollution, so the reduction of harmful, non-GHG emissions will also increase efforts to incorporate environmental justice initiatives.^[23]

The EPA’s new rule is functionally an overhaul of the Trump Administration’s SAFE regulations. The new rule properly incorporates the CAA’s clear statutory purpose of reducing GHG emissions and prioritizing public health and safety, sets ambitious yet realizable goals for one of the US’s most pollutive industries, sets up future MY regulations on a steadily decreasing path, and incorporates crucial yet generally lacking environmental justice criteria, all while still accounting for industry concerns such as compliance costs, lead time and other relevant factors. The rule also properly explains the agency’s change in reasoning for the new rule and cites strong Supreme Court precedent for its authority to do so. While the rule has not been legally challenged yet, time will what attacks are levied against it in the court, if any. 

Blake Welborn is a 3L from Austin, Texas. He majored in environmental studies at Texas A&M and then taught high school science before coming to Texas Law. He served as a staff editor and then a senior staff editor on TELJ, was a Pro Bono scholar with the Expunction Project during his 2L year, and is a member of Texas Law Review. Blake hopes to work on environmental justice issues in Texas after he graduates.

Jacob Arechiga is a Special Counsel in Duane Morris LLP’s Austin, Texas office. His practice is focused on complex commercial matters, particularly those in the energy and electric power industries.

Washington Update

Affordable Clean Energy Rule Vacated by the D.C. Circuit and What Could Be Next Under the Biden Administration

Introduction

President Biden campaigned on reforming the United States’ approach to addressing climate change. The “Biden Plan” includes, among other things, a goal to “ensure the U.S. achieves a 100% clean energy economy and reaches net-zero emissions by no later than 2050.”[1]

On President Biden’s first day in office, he issued numerous climate-related executive orders and took executive actions to advance this goal. As a result, the U.S. rejoined the Paris climate agreement,[2] federal agencies are required review all new and proposed Trump regulatory changes,[3] the Keystone XL pipeline permit was revoked[4], and oil and gas leasing in the Arctic National Wildlife Refuge was paused.[5]

While these executive orders could be implemented immediately, President Biden is likely to push for new legislation and engage in new rulemaking. In particular, President Biden is expected to address President Barack Obama’s Clean Power Plan (CPP) and President Donald Trump’s intended CPP replacement—the Affordable Clean Energy Rule (ACE Rule), which the U.S. Court of Appeals for the D.C. Circuit recently struck down.

ACE Rule as a Replacement to the Clean Power Plan

In 2015, the Obama Administration enacted the CPP to regulate power plants’ greenhouse gas (GHG) emissions.[6] Deriving its authority from the Clean Air Act’s Section 111(d), the CPP established budgets (or targets) for each state’s GHG emissions generation and directed each to develop GHG emissions-reduction plans statewide.[7] The CPP effectively required each state to create plans that would phase out coal from power plants and increase renewable energy generation. The goal was to decrease the power sector’s emissions so that 2030’s emissions are 32% less than 2005’s emissions.[8]

The plan faced legal challenges almost immediately after it was unveiled. These challenges were consolidated in a case brought before the D.C. Circuit. In February 2016, during the pendency of the case’s appeal, the Supreme Court issued an order that stayed the CPP’s implementation, pending a decision on the merits by the D.C. Circuit.[9] President Trump was elected before the D.C. Circuit could rule, and his administration replaced the CPP with the ACE Rule.

The ACE Rule emphasized a much narrower reading of the CAA’s authority. The Rule, finalized in June 2019, also repealed the CPP on the grounds that it unlawfully required states “to consider emission reductions through generation shifting,” like moving generation away from coal.[10] Instead, the ACE Rule emphasized heat rate improvements (or efficiency improvements) that could be achieved “inside the fence” of each regulated electric generating unit.[11]

Just prior to President Biden’s inauguration, the D.C. Circuit vacated the ACE Rule and its plan to relax power plants’ GHG emissions’ restrictions.[12] The Court called the ACE Rule a “fundamental misconstruction” of the CAA,[13] and rejected the Trump Administration’s narrow reading of its statutory authority as “not supported by the text, let alone plainly and unambiguously required by it.”[14]

Specifically, the Court rejected the Trump Administration’s CAA interpretation that Section 111(d) constrained emissions reduction methods to site-specific, inside-the-fence locations (i.e., “at and to the source”).[15] Instead, the Court reasoned that “Congress imposed no limits on the types of measures the EPA may consider beyond three additional criteria: cost, any non-air quality health and environmental impacts, and energy requirements.”[16]

Importantly, on February 22, 2021, the D.C. Circuit granted EPA’s request to partially stay its decision as it applied to the Trump EPA’s CPP repeal.[17] As a result, the CPP did not immediately go back into effect, leaving a clear path for the Biden EPA to develop a new rule limiting power plants’ GHG emissions.

A former Obama Administration legal counsel, Jody Freeman, called the ruling a “massive win” and argued that Biden “could go on the offense” immediately in crafting a new power plant plan.[18]

Potential Next Steps for the Biden Administration

The vacating of the ACE Rule grants the Biden administration an opportunity to develop a new regulatory structure to address the power industry’s GHG emissions. So long as the D.C. Circuit decision is upheld, the Biden Administration is not required to go through the extensive regulatory process of repealing the ACE Rule.

The Biden administration has indicated that it does not intend to revive the CPP.[19] During Biden’s EPA Administrator nominee’s, Michael Regan, confirmation hearings, Mr. Regan testified that the EPA would draw on the lessons from the CPP and ACE Rules, and that the current lack of an existing standard “‘presents a significant opportunity for the [EPA] to take a clean slate and look at how [to]] best move forward.”[20] At the time of this development’s drafting, the Biden Administration had not set forward a regulatory or legislative plan to address GHG emissions from power plants, though one is certainly expected during the President’s term.

Potential Obstacles to the Biden Administration

Though the D.C. Circuit struck down the ACE Rule, the Rule may not be entirely finished. Its proponents can mount challenges to prolong its life. Among their options, the litigants could petition for panel reconsideration of remedy or petition for rehearing en banc. Following the D.C. Circuit’s final decision on these appeals, the litigants could also appeal to the U.S. Supreme Court. These appeals’ outcomes may allow the ACE Rule to remain in place pending resolution of the hearing.

Conclusion

Regardless of whichever path the Biden Administration may take in replacing the CCP and ACE Rule, one outcome is certain: there will be continued legal battles. Any replacement rule issued by the Biden administration, even if accounting for legal concerns previously articulated by CPP opponents, will still likely be subject to extensive legal challenges in the D.C. Circuit, and if necessary, before the Supreme Court.

Jacob Arechiga is a Special Counsel in Duane Morris LLP’s Austin, Texas, office. His practice is focused on complex commercial matters, particularly those in the energy and electric power industries.

Matthew T. Goldstein is a third-year student at The University of Texas School of Law and is a Staff Editor of the Texas Environmental Law Journal.

Washington Updates

Executive Order to Accelerate the Nation’s Economic Recovery by Expediting Infrastructure Investments

Introduction

On July 4, 2020, President Trump issued the Executive Order entitled Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities (“EO”).^[1] The EO’s stated intent is to streamline regulations, thus limiting regulatory delays, in response to the economic crisis resulting from the COVID-19 pandemic.^[2] The EO instructs federal agencies to use emergency powers to expedite project approvals, directing they should: (1) use their emergency authority and statutes’ emergency provisions to expedite projects; (2) provide a report listing expedited projects; and (3) provide status updates with further reports due every thirty days.^[3]

This article discusses the content of the EO, and its requirements on agencies to encourage accelerated infrastructure development. Part I discusses the EO and the requirements that agencies must meet. Part II discusses the effects of the EO on industry and the environment. Part III discusses the future potential impact of the EO.

PART I: REQUIREMENTS OF THE EO

The EO instructs various federal agencies to exercise emergency authority provisions to expedite decision making, providing instructions that agencies should follow as well as reporting requirements that the agencies must undertake.^[4]

In Sections 3–5, the EO designates steps that specific executive departments must take to expedite project development.^[5] Listed are the Secretaries of Transportation, the Army, Defense, the Interior, and Agriculture.[6] Each department must “expedite work on, and completion of, all authorized and appropriated [projects] that are within the authority of the Secretaries.”^[7] These projects include “highway and other infrastructure projects,” “civil works projects,” “and infrastructure, energy, environmental, and all natural resources projects,” depending on the Secretary’s authority.^[8]

The EO requires the Secretaries to provide reports. Each Secretary must provide a “summary report[] listing all such projects that have been expedited . . . to the [Office of Management and Budget (OMB)] Director, the Assistant to the President for Economic Policy, and the Chairman of [the Council of Environmental Quality (CEQ)]” within thirty days of the EO.^[9] Within thirty days of the first report, the Secretaries must “provide a status report to the [same officials] that shall list any additions or other changes.”^[10] Reports are continuously required “at least every thirty days for the duration of the national emergency.”^[11]

In Sections 6–8, the EO instructs agency heads to apply various environmental statutes’ emergency provisions.^[12] The EO specifically addresses the National Environmental Policy Act’s (NEPA) emergency regulations and emergency procedures, the Endangered Species Act’s (ESA) emergency consultation, and the Clean Water Act’s (CWA) and other statutes administered by the U.S. Army Corp of Engineers’ (the Corps) emergency regulations and nationwide permits.^[13] All agencies must “identify planned or potential actions to facilitate the Nation’s economic recovery that may be subject to the” NEPA and ESA emergency provisions, with the Corps also being subject to additional requirements under the CWA.^[14]  The agencies are required to provide summary status reports on thirty-day intervals, outlining planned or potential actions to various cabinet secretaries and other individuals exerting oversight.^[15]

The EO’s Section 9 requires agencies to “review all statutes, regulations, and guidance documents that may provide for emergency or expedited treatment . . . with regard to agency actions pertinent to infrastructure, energy, environmental, or natural resource matters.”^[16] After, agencies must “identify planned or potential actions, including actions to facilitate the Nation’s economic recovery, that may be subject to emergency or expedited treatment.”^[17] These actions must be listed in a summary report “to the OMB Director, the Assistant to the President for Economic Policy, and the Chairman of CEQ.”^[18] Updated reports are also required every 30 days under this section.^[19]

PART II: PURPOSES AND EFFECTS OF THE EO

The Trump Administration has made several efforts to expedite the process of approving infrastructure projects. As stated in the EO, it is another step towards “reforming and streamlining [the approval process which the Administration refers to as] an outdated regulatory system that . . . [has] hindered American infrastructure investments.”^[20] Infrastructure permitting often “takes years of planning and construction.” ^[21] The EO’s goal is to accelerate this time-consuming process and provide project developers a means to avoid this lengthy process.^[22]

It is still unclear if, how, and to what extent, agencies will implement these expedited procedures and whether project developers will want such expedited review and approval of its projects. Some are concerned that the EO could not survive a legal challenge, with commentators noting that “the legal support for the . . . EO appears dubious and likely to be challenged.”^[23] As such, projects accelerated under the EO may “be subject to increased scrutiny and heightened litigation risk from third parties,”^[24] as courts have applied the relevant emergency powers narrowly in the past.^[25] The judiciary has limited the use of these powers to projects responding to emergencies that posed an “imminent hazard to human health and the environment.”^[26] While certain developers are wary of possible legal challenges, some projects are moving forward under the EO, including an oil-drilling project in Alaska and a private spaceport in Florida.^[27]

Environmental organizations have voiced their own concerns, arguing the EO will allow projects to avoid environmental regulations and that expedited approval will harm the environment.[28] Gina McCarthy, former EPA Administrator, and the current President and CEO of the Natural Resources Defense Council, stated: “Abusing emergency powers to deep-six necessary environmental reviews is utterly senseless. . . . Getting rid of them will hit those who live closest to polluting facilities and highways the hardest.”^[29] The Center for Biological Diversity also expressed its concerns in a letter to the Trump Administration.^[30] The Center said that it would seek litigation if the Administration did not revoke the order.^[31] Litigation that may emerge from the Center and other organizations is likely to slow projects that seek to be accelerated. It remains to be seen whether the costs and time lost in litigation outweigh the EO’s benefits.

PART III: THE FUTURE OF THE EO

The November 2020 Presidential election probably determined the EO’s future. The president has the power to revoke Executive orders. The President can revoke Executive Orders alone.^[32] Because former Vice President Joe Biden won the election, he is likely to revoke the order and may even impose more stringent standards on expedited projects in the future. A shifting standard poses an additional complication for projects that hope to benefit from the EO.

Jacob Arechiga is a Special Counsel in Duane Morris LLP’s Austin, Texas office. His practice is focused on complex commercial matters, particularly those in the energy and electric power industries.

Kylan MacLeod is a second-year student at The University of Texas School of Law and is a Staff Editor of the Texas Environmental Law Journal.

By Jacob Arechiga and Kylan MacLeod

Washington Updates

Executive Order to Accelerate the Nation’s Economic Recovery by Expediting Infrastructure Investments

Introduction

On July 4, 2020, President Trump issued the Executive Order entitled Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities (“EO”).^[1] The EO’s stated intent is to streamline regulations, thus limiting regulatory delays, in response to the economic crisis resulting from the COVID-19 pandemic.^[2] The EO instructs federal agencies to use emergency powers to expedite project approvals, directing they should: (1) use their emergency authority and statutes’ emergency provisions to expedite projects; (2) provide a report listing expedited projects; and (3) provide status updates with further reports due every thirty days.^[3]

This article discusses the content of the EO, and its requirements on agencies to encourage accelerated infrastructure development. Part I discusses the EO and the requirements that agencies must meet. Part II discusses the effects of the EO on industry and the environment. Part III discusses the future potential impact of the EO.

PART I: REQUIREMENTS OF THE EO

The EO instructs various federal agencies to exercise emergency authority provisions to expedite decision making, providing instructions that agencies should follow as well as reporting requirements that the agencies must undertake.^[4]

In Sections 3–5, the EO designates steps that specific executive departments must take to expedite project development.^[5] Listed are the Secretaries of Transportation, the Army, Defense, the Interior, and Agriculture.[6] Each department must “expedite work on, and completion of, all authorized and appropriated [projects] that are within the authority of the Secretaries.”^[7] These projects include “highway and other infrastructure projects,” “civil works projects,” “and infrastructure, energy, environmental, and all natural resources projects,” depending on the Secretary’s authority.^[8]

The EO requires the Secretaries to provide reports. Each Secretary must provide a “summary report[] listing all such projects that have been expedited . . . to the [Office of Management and Budget (OMB)] Director, the Assistant to the President for Economic Policy, and the Chairman of [the Council of Environmental Quality (CEQ)]” within thirty days of the EO.^[9] Within thirty days of the first report, the Secretaries must “provide a status report to the [same officials] that shall list any additions or other changes.”^[10] Reports are continuously required “at least every thirty days for the duration of the national emergency.”^[11]

In Sections 6–8, the EO instructs agency heads to apply various environmental statutes’ emergency provisions.^[12] The EO specifically addresses the National Environmental Policy Act’s (NEPA) emergency regulations and emergency procedures, the Endangered Species Act’s (ESA) emergency consultation, and the Clean Water Act’s (CWA) and other statutes administered by the U.S. Army Corp of Engineers’ (the Corps) emergency regulations and nationwide permits.^[13] All agencies must “identify planned or potential actions to facilitate the Nation’s economic recovery that may be subject to the” NEPA and ESA emergency provisions, with the Corps also being subject to additional requirements under the CWA.^[14]  The agencies are required to provide summary status reports on thirty-day intervals, outlining planned or potential actions to various cabinet secretaries and other individuals exerting oversight.^[15]

The EO’s Section 9 requires agencies to “review all statutes, regulations, and guidance documents that may provide for emergency or expedited treatment . . . with regard to agency actions pertinent to infrastructure, energy, environmental, or natural resource matters.”^[16] After, agencies must “identify planned or potential actions, including actions to facilitate the Nation’s economic recovery, that may be subject to emergency or expedited treatment.”^[17] These actions must be listed in a summary report “to the OMB Director, the Assistant to the President for Economic Policy, and the Chairman of CEQ.”^[18] Updated reports are also required every 30 days under this section.^[19]

PART II: PURPOSES AND EFFECTS OF THE EO

The Trump Administration has made several efforts to expedite the process of approving infrastructure projects. As stated in the EO, it is another step towards “reforming and streamlining [the approval process which the Administration refers to as] an outdated regulatory system that . . . [has] hindered American infrastructure investments.”^[20] Infrastructure permitting often “takes years of planning and construction.” ^[21] The EO’s goal is to accelerate this time-consuming process and provide project developers a means to avoid this lengthy process.^[22]

It is still unclear if, how, and to what extent, agencies will implement these expedited procedures and whether project developers will want such expedited review and approval of its projects. Some are concerned that the EO could not survive a legal challenge, with commentators noting that “the legal support for the . . . EO appears dubious and likely to be challenged.”^[23] As such, projects accelerated under the EO may “be subject to increased scrutiny and heightened litigation risk from third parties,”^[24] as courts have applied the relevant emergency powers narrowly in the past.^[25] The judiciary has limited the use of these powers to projects responding to emergencies that posed an “imminent hazard to human health and the environment.”^[26] While certain developers are wary of possible legal challenges, some projects are moving forward under the EO, including an oil-drilling project in Alaska and a private spaceport in Florida.^[27]

Environmental organizations have voiced their own concerns, arguing the EO will allow projects to avoid environmental regulations and that expedited approval will harm the environment.[28] Gina McCarthy, former EPA Administrator, and the current President and CEO of the Natural Resources Defense Council, stated: “Abusing emergency powers to deep-six necessary environmental reviews is utterly senseless. . . . Getting rid of them will hit those who live closest to polluting facilities and highways the hardest.”^[29] The Center for Biological Diversity also expressed its concerns in a letter to the Trump Administration.^[30] The Center said that it would seek litigation if the Administration did not revoke the order.^[31] Litigation that may emerge from the Center and other organizations is likely to slow projects that seek to be accelerated. It remains to be seen whether the costs and time lost in litigation outweigh the EO’s benefits.

PART III: THE FUTURE OF THE EO

The November 2020 Presidential election probably determined the EO’s future. The president has the power to revoke Executive orders. The President can revoke Executive Orders alone.^[32] Because former Vice President Joe Biden won the election, he is likely to revoke the order and may even impose more stringent standards on expedited projects in the future. A shifting standard poses an additional complication for projects that hope to benefit from the EO.

Jacob Arechiga is a Special Counsel in Duane Morris LLP’s Austin, Texas office. His practice is focused on complex commercial matters, particularly those in the energy and electric power industries.

Kylan MacLeod is a second-year student at The University of Texas School of Law and is a Staff Editor of the Texas Environmental Law Journal.